Immigration Reform: REAL ID and a Federal ‘No Work’ List

June 14, 2007 • TechKnowledge No. 104

Immigration reform is now in limbo, perhaps to return to the Senate floor for a vote, perhaps not. The debate so far — over ‘amnesty,’ border control, and guest workers‐​has assumed that “workplace enforcement” is a good thing. But verifying workers’ employment eligibility, as called for in the Senate immigration bill, is not such a good idea. It would revive the failing national ID plan in the REAL ID Act, create a mission‐​creepy surveillance system, and subject every American worker to a bureaucratic gauntlet akin to the Department of Homeland Security’s embarrassing “no‐​fly” list.

The overall purpose of immigration law reform is salutary. Aligning immigration law with the nation’s strong economic demand for new workers would foster lawful behavior among migrant workers, immigrants, and employers. But by establishing an “electronic employment verification system” tied to the infamous REAL ID card, the immigration bill in the Senate would promote surveillance and tracking of every American, native‐​born and immigrant alike.

Since the Immigration Reform and Control Act of 1986 introduced the I-9 form and criminalized hiring illegal immigrants, many have come to accept that Americans’ ability to work should depend on being eligible under federal law and doing the paperwork to prove it. Employment eligibility verification has not reduced illegal immigration, though, so immigration reform is back on Congress’s agenda.

When a policy is failing, Congress has a choice: scrap it, or strengthen it. The option that increases federal spending and federal control is almost always the one that carries the day in the federal city. Despite its failure, the march to strengthen workplace enforcement continues.

The groundwork for the current push was laid in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It required the Immigration and Naturalization Service to commence electronic verification of employees’ work eligibility, a program called “Basic Pilot.” In Basic Pilot, employers enter the information supplied on workers I-9 forms into a government website. It is compared with information held by the Social Security Administration and DHS to determine whether the employee is work‐​eligible.

When the system cannot confirm a worker’s eligibility, it issues the employer a “tentative nonconfirmation.” The employer must notify the affected worker, and the worker has the right to contest his or her tentative nonconfirmation within eight working days by contacting SSA or the Customs and Immigration Service. When a worker does not contest his or her tentative nonconfirmation quickly enough, the Basic Pilot program issues a final nonconfirmation and the employer is required to either immediately terminate the worker or notify DHS of its continued employment of the worker.

Title III of the Senate immigration bill would expand this program to all employers and workers within three years. This is much more easily said than done. It is unlikely to have the effects its proponents want. And it would be costly in both dollars and privacy.

Most people are familiar with the agonizing lines, the random screenings, and the Kafkaesque “suspect” treatment some get at airports. Title III would bring this state of affairs to the employment process. Last December, the Social Security Administration’s Office of Inspector General estimated that the SSA’s “Numident” file — the data against which Basic Pilot checks worker information — has an error rate of 4.1%. All of the cases it analyzed resulted in Basic Pilot providing incorrect results. At this rate, one in every 25 new hires would receive a tentative nonconfirmation. That would leave millions of American workers to engage with government bureaucracy seeking permission to hold a job — most likely during hours they are supposed to be at work.

The dollar costs of a nationwide electronic verification system would be high. In December 2005, the Congressional Budget Office estimated the costs of the electronic employment verification system in H.R. 4437, an immigration reform bill in the 109th Congress. CBO estimated $100 million in short‐​run costs for upgrading software, hardware, databases, and other technology. To handle queries about tentative nonconfirmations, DHS and SSA would have had to spend about $100 million per year on new personnel. This is to say nothing of the costs to employers and workers, especially those denied permission to work. These costs would fall on U.S. taxpayers — not illegal immigrants.

Electronic verification would have far greater privacy consequences than the current system — consequences that would also fall on American citizens. Unlike paper records, when an employer enters I-9 information into a web form and sends it to the SSA and DHS, that information becomes very easy for those entities to access, copy, or use. It is combined with “meta‐​data” — information about when the information was collected, from whom, and so on. The process gives the government access to a wealth of data about every American’s working situation. It can easily be correlated with tax records at the IRS, education loan records in the Department of Education, health records at the Department of Health and Human Services, and so on. Title III specifically requires the IRS to share taxpayer data with DHS. Electronic employment eligibility verification will unravel the privacy of law‐​abiding American citizens.

Disclosure to the government is not the only privacy‐​related concern with an electronic employment verification system. Data security is an issue as well. We have seen massive data breaches from government agencies in the recent past, and from private entities too. Watch for identity theft to rise if there is electronic employment eligibility verification.

Illegal workers will need new name and Social Security number pairs to use against the system. The very best source will be the system itself — the SSA and DHS databases, the offices where “tentative nonconfirmations” are processed, the people that process them, and the communications links that connect all these elements. Any electronic employment verification system will be a target for hackers, a data breach waiting to happen, and a threat to the identity system we rely on today. Electronic employment verification would put Americans’ sensitive personal information at risk. The best security against data breach is not collecting information in the first place.

This Byzantine verification system is built on an attempt to revive the collapsing REAL ID Act, the national ID law that has already been rejected by sixteen of the states on which it relies for implementation. Title III requires every American to have a REAL ID compliant card by 2013 if they want to get federal approval for working, and the bill would spend $300 million trying to get states to implement the REAL ID Act. This is a paltry sum, given the more than $10 billion DHS’ own estimates say states would have to spend. That $300 million shouldn’t be spent on a national surveillance system at all; it should be returned to taxpayers. The DHS should not resurrect the failed national ID system through the immigration reform plan. Law‐​abiding, native‐​born Americans should be able to work without carrying a national ID.

Bringing immigration law in line with the wants and needs of American citizens and immigrants will do more for the rule of law than the “workplace enforcement” provisions in the immigration bill ever could. Title III is not only unnecessary, but also expensive and invasive. When immigration law reform comes back, lawmakers should closely consider whether surveillance of American workers is something they support, no matter what their positions on other immigration issues.

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